Merchants Transportation of California

National Labor Relations Board - Board Decisions

Jul 27, 1994

314 N.L.R.B. 531 (N.L.R.B. 1994)

531
314 NLRB No. 90
MERCHANTS TRANSPORTATION OF CALIFORNIA
1 In its amended answer, the Respondent argues for the first time
that an employee voted in the election who would not have been em-
ployed at the time of the election had the Respondent been aware
of the employee’s misconduct. The Respondent further alleges that
the employee concealed his misconduct in order to vote in the elec-
tion. We reject the Respondent’s contention that we should not order
bargaining with the Union on the basis of this allegation. The Re-
spondent’s allegation is in the nature of a postelection challenge and
is rejected. Oppenheim Collins & Co., 108 NLRB 1257 (1954). We
also reject the Respondent’s further allegation that the employee was
an agent of the Union. That issue was litigated and decided in the
representation proceeding.
Merchants Transportation of California, Inc. and
Brotherhood of Teamsters, Auto Truck Driv-
ers, Car Haulers and Helpers, Local No. 70,
International Brotherhood of Teamsters, AFL–
CIO. Case 32–CA–13930
July 27, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On May 20, 1994, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 32–RC–3791. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) On June 3, 1994, the Re-
spondent filed an answer to the complaint and on June
29, 1994, filed an amended answer to complaint, with
affirmative defenses admitting in part and denying in
part the allegations in the complaint.
On June 10, 1994, the General Counsel filed a Mo-
tion for Summary Judgment and memorandum in sup-
port. On June 15, 1994, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.
On June 27, 1994, the Union filed a joinder in Motion
for Summary Judgment. On June 29, 1994, the Re-
spondent filed a reply to Notice to Show Cause and
statement in opposition to Motion for Summary Judg-
ment.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer and amended answer the Respondent
admits its refusal to bargain but attacks the validity of
the certification on the basis of its objections to con-
duct affecting the results of the election, the Board’s
disposition of certain challenged ballots, and the
Board’s unit determination in the representation pro-
ceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding.1 See Pitts-
burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Accordingly, we grant the Motion for Sum-
mary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, the Respondent, a cor-
poration with an office and place of business in San
Leandro, California, has been engaged in business as
a common and contract carrier.
During the 12-month period preceding issuance of
the complaint the Respondent, in the course and con-
duct of its business operations, derived gross revenues
in excess of $50,000 from the transportation of freight
moving in interstate commerce.
Based on its operations, the Respondent functions as
an essential link in the transportation of freight in
interstate commerce. We find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 16 and 17,
1993, the Union was certified on January 21, 1994, as
the collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time employees, in-
cluding line drivers, city drivers, dock workers,
mechanics, and plant clerical employees employed
by Respondent at its San Leandro, California fa-
cility; excluding all office clerical employees,
sales employees, guards, and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
B. Refusal to Bargain
Since April 27, 1994, the Union has requested the
Respondent to bargain, and, since May 2, 1994, the
Respondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after May 2, 1994, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Merchants Transportation of California,
Inc., San Leandro, California, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Brotherhood of Team-
sters, Auto Truck Drivers, Car Haulers and Helpers,
Local No. 70, International Brotherhood of Teamsters,
AFL–CIO, as the exclusive bargaining representative
of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time employees, in-
cluding line drivers, city drivers, dock workers,
mechanics, and plant clerical employees employed
by Respondent at its San Leandro, California fa-
cility; excluding all office clerical employees,
sales employees, guards, and supervisors as de-
fined in the Act.
(b) Post at its facility in San Leandro, California,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Brotherhood of
Teamsters, Auto Truck Drivers, Car Haulers and Help-
ers, Local No. 70, International Brotherhood of Team-
sters, AFL–CIO as the exclusive representative of the
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time employees, in-
cluding line drivers, city drivers, dock workers,
mechanics, and plant clerical employees employed
by us at our San Leandro, California facility; ex-
cluding all office clerical employees, sales em-
533MERCHANTS TRANSPORTATION OF CALIFORNIA
ployees, guards, and supervisors as defined in the
Act.
MERCHANTS TRANSPORTATION OF CALI-
FORNIA, INC.